BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20100007737 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  The applicant states the following:

* the discharge he received in 1987 was not warranted
* it has been over 20 years since he was dismissed from the Army for being absent without leave (AWOL) and missing a movement
* he has been a good citizen since that time
* he would like his status cleared from that mistake and bad judgment 
* he has one honorable discharge 
* he is a member of the American Legion, Disabled American Veterans, and an active participant in the Veterans Affairs program
* he admits what he did was wrong, but he had gotten into much debt
* he had to support his wife and children 
* he turned himself in and was sent to a base in Kentucky
* he was told by a sergeant major to admit he was AWOL and to take whatever was given to him 

3.  The applicant provides no additional documents in support of his application.  


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the U.S. Marine Corps (USMC) on 27 March 1980 and he was honorably released from active duty on 26 March 1984.  He enlisted in the Regular Army on 19 June 1984 for a period of three years.

3.  On 14 August 1986, charges were preferred against the applicant for being AWOL from 17 October 1985 to 22 October 1985 and from 7 November 1985 to 11 August 1986.

4.  The applicant consulted with legal counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge was issued.  He did not submit statements in his own behalf.

5.  The separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial with issuance of a UOTHC discharge.

6.  The applicant was accordingly discharged on 17 September 1986 under the provisions of Army Regulation 635-200, chapter 10, with a UOTHC discharge.  He had completed 1 year, 5 months, and 20 days of active service this period with 282 days of lost time.  He had 4 years of prior creditable active service.

7.  The applicant’s service record does not indicate he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its
15-year statute of limitations.
8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a UOTHC discharge is normally considered appropriate.

9.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the discharge he received in 1987 was not warranted.  However, the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  No evidence of record indicates the request was made under coercion or duress.

2.  The applicant’s statements regarding his personal family problems were acknowledged.  However, the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct (AWOL) which led to his discharge.  The applicant's personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

3.  The applicant’s statements regarding his post-service service conduct were also acknowledged.  However, these issues are not sufficiently mitigating to warrant relief in this case.

4.  The applicant's record of service shows he was charged with two specifications of AWOL for a total of 282 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an honorable or a general discharge.

5.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, it is concluded his discharge was proper and equitable and it accurately reflects his overall record of service.

6.  The evidence of record does not indicate the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  ____x____  ____x_  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________x_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20100007737



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)